Day & Sharpe's Assigned Estate, 21 Pa. Super. 118

Day & Sharpe's Assigned Estate

21 Pa. Super. 118 | Pa. Super. Ct. | 1902

Opinion by

William W. Porter, J.,

Day and Sharpe made an assignment, for the benefit of creditors, to A. I. Scott. Before the assignment several judgments had been entered against the firm and executions issued thereon. The fourth execution to reach the sheriff was issued on a judgment held by J. McD. Scott & Company. The fifth and sixth writs were upon judgments held by Letha L. McQuaid, who, in consideration of an agreement made with her by J. McD. Scott, agreed with other creditors that the property of Day and Sharpe might be sold by the assignee and not by the sheriff. The assignee made the sale and brought the proceeds into court. The questions here arising are: What was the agreement between J. McD. Scott, and McQuaid, and what was its effect upon A. I. Scott, to whom, pending the sale of the assets, J. McD. Scott assigned his judgment? J. McD. Scott says that he promised Letha L. McQuaid that if she would sign the agreement permitting the sale of the assets to be made by the assignee, he would pay her $500, provided the proceeds of the sale did not amount to sufficient to pay $500 on her judgment. On the other hand, Letha L. McQuaid asserts that she signed the agreement permitting the assignee to make the sale, on the faith of an agreement by J. McD. Scott that out of the moneys coming to him on his execution, should be paid to her $500, in case the fund was not sufficient to pay her $500 on her judgment. It will be observed that the primary question is one almost wholly of fact. The proof of the agreement between the parties lies in parol. An unsigned written memorandum was exhibited in evidence. It recites as follows: “Out of the moneys coming into the hands of the assignee of Day and Sharpe, there is to be paid to apply on Letha L. McQuaid’s judgment, the sum of $500 by J. McD. Scott, when the account of the assignee is finally confirmed, providing there is not sufficient paid *122by the assignee to pay $500 on her judgment.” The evidence furnished by this unsigned paper is supplemented by oral testimony from several witnesses present when the arrangement was consummated. The result of all the evidence is not that J. McD. Scott made a mere personal promise to pay $500, but that he agreed that the amount grasped by the writ upon his judgment, when ascertained on the confirmation of the assignee’s account, should be secured to the McQuaid judgment to the extent of $500, which should be paid “ out of the moneys coming into the hands of the assignee.” The unsigned writing contradicts the theory that a simple personal promise was made by J. McD. Scott to pay $500. It indicates that the fund to be produced in the hands of the assignee and applicable to the Scott judgment by virtue of the execution, was the fund out of which the payment to McQuaid should come. This was the contract shown by the testimony. Letha L. McQuaid performed her part of the agreement by acquiescing in the sale by the assignee. J. McD. Scott seems now to be irresponsible. A. I. Scott, the present owner of the judgment (and the holder of the fund for distribution) is, by the clear weight of the evidence, charged with knowledge of the agreement between J. McD. Scott and McQuaid. The auditor explicitly finds that he had such knowledge. It would, therefore, be inequitable to permit him, by taking an assignment of the judgment, to escape the obligation annexed to its ownership by the act of his assignor. He must be held to have taken the assignment of the judgment cum onere. The agreement of the former holder with McQuaid was in the nature of an equitable assignment of the fund applicable, on the settlement of the account of the assignee, to the payment of the Scott judgment, to take effect in case the whole fund proved insufficient to pay $500 on the Mc-Quaid judgment. An equitable assignment is an agreement in the nature of a declaration of trust which a chancellor never hesitates to execute when it has been made on a valuable, or even good, consideration: Nesmith v. Drum, 8 W. & S. 9; Moeser v. Schneider, 158 Pa. 412; Guthrie’s Appeal, 92 Pa. 272. The matter of form is unimportant: East Lewisburg Lumber, etc., Co. v. Marsh, 91 Pa. 100. The case last cited is authority for the statement that equity will support assignments of contingent interests and expectancies; things which have .no *123present actual existence, but rest in mere possibility, provided the agreements are fairly entered into and it would not be against public policy to uphold them. In this case the agreement affected a fund to be produced, and applicable to the Scott judgment. This fund became applicable, under the terms of the agreement with McQuaid, to the payment of the $500 to her, since the whole fund was insufficient to pay $500 on her judgment.

The decree of the court below is, therefore, affirmed.